*CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
Lexicons
This Agreement is made between Infoseek Corporation ("INFOSEEK"), with offices
at 2620 Augustine Drive, Suite 250, Santa Clara, California 95054 and XSoft, a
Division of XEROX CORPORATION ("XEROX"), with offices at 3400 Hillview Avenue,
Palo Alto, California 94306 and shall be effective as of March 31,1996.
RECITALS
XEROX has created, or has the rights to certain Lexical Technology, Lexicons and
Documentation (hereinafter "Lexicons") and INFOSEEK desires to acquire a right
and license to use Lexicons to provide services to INFOSEEK customers, or to
incorporate Lexicons in certain INFOSEEK Software for sublicense to customers,
under the terms and conditions set forth in this Agreement; and
XEROX is willing to grant such rights and licenses and provide
Technical Support as required herein; and:
In consideration of the mutual Agreements contained in this Agreement,
XEROX and INFOSEEK hereby agree as follows:
I. DEFINITIONS
1.01 "Lexicons" means all software, in object format, and documentation
identified in Attachment I hereof, and shall include all ports,
modifications, improvements, enhancements, additions, derivative works,
updates, releases and versions thereof, all of which have been
explicitly identified in Attachment I hereof.
1.02 "LICENSED SOFTWARE" means any work derived from the combination of the
Lexicons and INFOSEEK Internet Search Software identified in Attachment
I hereof, and for which a royalty schedule has been defined and agreed
by the parties. LICENSED SOFTWARE shall include all modifications,
improvements, enhancements, additions, derivative works, updates,
releases and versions thereof, of which derivation was created or
developed by or on behalf of INFOSEEK.
1.03 "Documentation" is identified in Attachment I and means written text
including but not limited to manuals, brochures, specifications and
software descriptions, in electronic, printed and/or camera ready form,
and related materials customarily needed for use with Lexicons.
1.04 A "BUG" is defined as any: (a) typographical error, including efforts
in the documentation, (b) entry with a wrong lexical marking, (c)
functional or operational error or fault that is not caused by (i)
missing words or names, (ii) inaccurate input of data by Licensee or
end-user, or (iii) unauthorized alteration or modifications of the
Licensed Software, or (d) incorrect or incomplete statement or diagram
in the Documentation.
II. TITLE TO LICENSED SOFTWARE, DERIVATIVE WORKS & MARKETING RIGHTS
2.01 Title to and ownership of the Lexicons resides in XEROX. Title to the
LICENSED SOFTWARE created or developed using Lexicons by or on behalf
of INFOSEEK shall reside in INFOSEEK. INFOSEEK acknowledges that title
to and ownership of Lexicons incorporated in the LICENSED SOFTWARE
shall at all times remain with XEROX.
2.02 Any reproduction of any portion of the Lexicons by INFOSEEK will
include any proprietary and statutory copyright notices present in the
originals received from XEROX unless otherwise stated in Attachment I.
2.03 When INFOSEEK uses the Lexicons for research purposes, including, but
not limited to processing text corpora for linguistic analysis or using
the Lexicons as a part of a larger computer system, INFOSEEK shall
include a proper reference to the Xerox Lexicons and their
documentation in INFOSEEK's published or unpublished reports, research
articles or other written works.
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XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
Lexicons
2.04 INFOSEEK is granted the right to use XEROX's name, copyright, logos,
trade names and trademarks for the purposes of identification of the
LICENSED SOFTWARE or Lexicons under this Agreement. Further, XEROX's
name will be used only in an ethical and commercially reasonable
manner, for the products developed under this Agreement. All other
applicable rights to patents, copyrights, trademarks, and trade secrets
in Lexicons remain with XEROX.
2.05 For all distribution, INFOSEEK will require that any use of the
LICENSED SOFTWARE will include all copyright notices sufficient in form
and substance to adequately protect and preserve XEROX's copyright
therein, including but not limited to, any manuals and an appropriate
screen of a product using the LICENSED SOFTWARE.
III. LICENSE GRANT
3.01 XEROX grants and conveys to INFOSEEK a non-exclusive (except as noted
elsewhere in this Agreement), world-wide right and license to market,
use, maintain, reproduce, distribute, display, and/or sub-license
Lexicons, in object code format, as incorporated in the LICENSED
SOFTWARE and for which software a royalty schedule or a periodic
license payment is defined in Attachment II.
3.02 INFOSEEK acknowledges that it has no rights to XEROX's Finite State
development tools which are used to produce Lexical Products and
Lexicons.
3.03 XEROX will provide INFOSEEK with written notification of pending new
updates, releases and versions and availability thereof, sufficiently
in advance of publication in order for INFOSEEK to react in a timely
manner.
IV. ROYALTY
4.01 INFOSEEK will pay XEROX a royalty based on advertising revenue received
by INFOSEEK which is related to LICENSED SOFTWARE, and/or a Periodic
License Fee, as defined in Attachment II entitled "ROYALTY/PERIODIC
FEES."
V. MARKETING OF LICENSED SOFTWARE
5.01 XEROX will provide to INFOSEEK all relevant marketing information in
its possession, technical specifications, and update descriptions
related to Lexicons for the primary purpose of promotion thereof as
incorporated in the LICENSED SOFTWARE, so that INFOSEEK can, on a
periodic basis and as new changes or additions occur, distribute the
same to its sales force and customers. During the term of this
Agreement, INFOSEEK may also include Lexicons product description and
information in any INFOSEEK literature. The distribution of such
literature by INFOSEEK will be at the expense of INFOSEEK. INFOSEEK
may, at their option and expense, prepare its own promotional
literature relating to Xerox Lexicons and the LICENSED SOFTWARE, and
distribute the same to its sales force and customers.
VI. ENHANCEMENTS TO Lexicons
6.01 During the term of this Agreement, XEROX will provide INFOSEEK with bug
fixes to all BUGs reported by INFOSEEK, according to the procedure,
outlined in Attachment III. Xerox may, at its discretion, provide
INFOSEEK with periodic updates of or revisions to Lexicons, including,
but not limited to, re-implementation for different computer processors
or programming languages. Xerox will provide INFOSEEK with any updates
or revisions made generally available to other customers. Any update,
revision or modification of the Lexicons so provided shall be covered
by the provisions of this Agreement as identified in Attachment I
"Specifications." XEROX' sole obligations regarding support,
enhancements and maintenance of the Lexicons are limited to the
descriptions in Attachment III "Technical Support".
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Lexicons
6.02 INFOSEEK may, at its discretion, provide XEROX with feedback relative
to its use of Lexicons, including but not limited to errors and other
corrective information, modifications, extensions and suggested changes
relative to supporting documentation.
6.03 INFOSEEK grants to XEROX an irrevocable, non-exclusive, royalty-free
world-wide license covering any and all rights owned, controlled or
licensable by INFOSEEK relating to such corrections, modifications,
extensions and supporting documentation of Lexicons pursuant to this
agreement. XEROX shall have the right under this license to make, have
made, use, sell, lease, reproduce, prepare derivative works, including
the right to any modifications or improvements and the like made at the
suggestion of INFOSEEK or based on the aforesaid feedback and to
distribute, sublicense and otherwise dispose of any of the foregoing
rights in connection with the licensed subject matter, and to
sub-license others to perform any of these acts.
VII. SPECIFICATIONS, DELIVERY AND ACCEPTANCE
7.01 XEROX will deliver the Lexicons and test suite in accordance with the
Specification defined in Attachment I and any technical appendices that
later will be mutually agreed in writing.
7.02 Acceptance Procedure
Upon delivery of each of the Lexicons to INFOSEEK, INFOSEEK will: (a)
Test and evaluate Lexicons for a period of up to 30 (thirty) days, and
(b) Produce a list of changes and modifications needed to bring the
Lexicons to conformance with the Specification in Attachment I.
Upon receipt of the required changes, XEROX will: (c) Correct BUGs at
no charge and (d) deliver to INFOSEEK a final version of the Lexicons.
7.03 INFOSEEK may request changes to the Lexicons which include enhancements
to the product beyond those included in the Specification. XEROX will
discuss such enhancements with INFOSEEK but will be under no obligation
to implement any such enhancements, unless agreed by the parties in
writing as to content, schedule and fees for changes to the
Specification.
7.04 INFOSEEK and XEROX will each designate individuals who will serve as
liaisons for the term of the agreement. These liaisons will be
identified in Attachment I.
7.05 XEROX shall provide to INFOSEEK a master set of the Lexicons suitable
for reproduction. INFOSEEK may use the master set solely to copy and
develop products and services to be distributed to third parties in
accordance with this Agreement.
VIII. WARRANTY
8.01 XEROX represents and warrants that Lexicons is substantially free from
program errors or other problems and fully meets the Specifications
recited in Attachment I.
8.02 If any BUGs are discovered by INFOSEEK, XEROX shall correct such BUGs
at no charge to INFOSEEK within a correction period of thirty (30) days
following receipt of written notice from INFOSEEK of such BUG. Product
enhancements and other program errors will be corrected according to
acceptance procedure outlined in clause VII.
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XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
Lexicons
8.03 XEROX warrants that the master of the media on which the Lexicons are
contained shall be free of physical defects. If at any time defects are
discovered, INFOSEEK shall notify XEROX immediately and XEROX shall
correct the defects by providing a new master on a new media
immediately.
8.04 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, XEROX HEREBY
DISCLAIMS AND INFOSEEK HEREBY EXPRESSLY WAIVES ANY AND ALL OTHER
EXPRESS WARRANTIES OR REPRESENTATIONS OF ANY KIND OR NATURE, AND ANY
AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IX. TECHNICAL SUPPORT
9.01 XEROX shall provide technical support and maintenance of Lexicons to
INFOSEEK in conformity with the terms and conditions defined in
Attachment III, entitled "Technical Support."
X. TERMINATION
10.01 This Agreement shall be effective from the date hereof and shall remain
in effect for an initial three year period thereafter. It will
automatically renew for additional one year periods of time unless
either party, in writing and with 90 day notice, objects to such
renewal.
10.02 Either XEROX or INFOSEEK may terminate this Agreement by written notice
of termination to the other party upon a material breach by XEROX or
INFOSEEK which has not been cured within thirty (30) days of written
notice of such breach. Termination for material breach shall take
effect 90 days after written notice of such breach has been provided,
if said breach has not been cured. The Confidential Obligations (the
obligations as to CONFIDENTIAL INFORMATION) herein and any other
remedies available, such as return of fees, shall not be waived and
shall survive termination.
10.03 Upon termination of this Agreement the license shall immediately cease
and INFOSEEK shall:
(a) promptly cease the distribution of and/or the provision of
services based on LICENSED SOFTWARE to any new sub-license partners,
OEMs or end-users;
(b) promptly cease use of the LICENSED SOFTWARE incorporating the
Lexicons, including its use on any processor, except as is required for
providing maintenance to its existing customers;
(c) promptly cease provision of services based in whole or in part on
the Lexicons;
(d) return the master copies of Lexicons and return or destroy all
copies of Lexicons and supporting documentation; INFOSEEK may, however,
retain one (1) copy of the Lexicons and Documentation to be used solely
for support purposes.
(e) remove Lexicons from LICENSED SOFTWARE not returned or destroyed;
(f) certify in writing to XEROX that it has performed these acts, and
the obligations under clauses 2 and 15 shall remain in force until
INFOSEEK has performed these acts.
10.04 Upon completion of the third year payments, the royalty and/or fees
paid by INFOSEEK to XEROX for the licenses of the Lexicons constitutes
a "fully paid-up" license to use such Lexicons in LICENSED SOFTWARE.
Thereafter, termination of this Agreement shall not act to terminate
such fully paid-up licenses granted by XEROX pursuant to this
Agreement.
10.05 All valid INFOSEEK sub-licenses, in effect on the date of termination,
shall survive the termination of this Agreement.
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Lexicons
XI. INDEMNIFICATION
11.01 XEROX represents and warrants that it has sufficient right, title and
interest in and to the Lexicons to enter into this Agreement and
further warrants that the Lexicons do not infringe any patent,
copyright or other proprietary right of a third party and that it has
not been notified by a third party of a possibility that the Lexicons
might infringe any patent, copyright or other proprietary right of a
third party.
11.02 XEROX shall defend INFOSEEK from, and pay any judgment for, any claim,
action or other proceeding brought against INFOSEEK or INFOSEEK
licensee of the Lexicons arising from the use of the Lexicons,
providing that INFOSEEK promptly notifies XEROX in writing of any
action or claim, allows XEROX, at XEROX expense, to direct the defense,
gives XEROX full information and reasonable assistance required to
defend such suit, claim or proceeding, at no out-of-pocket expense to
INFOSEEK, and allows XEROX to pay any judgment, provided further that
XEROX shall have no liability for any claim, action or other proceeding
based upon acts or omissions by INFOSEEK or for settlements or costs
incurred without the knowledge of XEROX. This indemnity shall not apply
to any alleged infringement caused by combination with other software
or products when the alleged infringement would not have occurred but
for said combination. To avoid infringement, XEROX may, at its option,
and at no charge to INFOSEEK, obtain a license or right to continue the
use of the Lexicons, or modify the Lexicons so it no longer infringes,
but is still an equivalent of the Lexicons, or substitute an equivalent
of the Lexicons. INFOSEEK as used in this paragraph shall include any
* [ ].
XII. DISCLAIMER
12.01 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST
CONTRACTS OR LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF THE USE OF THE Lexicons
OR LICENSED SOFTWARE OR RELATING TO THIS AGREEMENT HOWEVER CAUSED
UNDER A CLAIM OF ANY TYPE OR NATURE BASED ON ANY THEORY OF LIABILITY
(INCLUDING CONTRACT, TORT OR WARRANTY) EVEN IF THE POSSIBILITY OF SUCH
DAMAGES HAS BEEN COMMUNICATED. THIS DISCLAIMER DOES NOT APPLY TO
THE INDEMNIFICATION OF SECTION XI.
XIII. FORCE MAJEURE
13.01 Neither party shall be liable to the other for its failure to perform
any of its obligations hereunder during any period in which such
performance is delayed by circumstances beyond its reasonable control,
provided that the party experiencing such delay promptly notifies the
other party of the delay.
XIV. ETHICAL STANDARDS
14.01 XEROX agrees that with respect to its role as supplier to INFOSEEK
including any interaction with any employee of INFOSEEK, it shall not:
(1) give or offer to give any gift or benefit to said employee, (2)
solicit or accept any information, data, services, equipment, or
commitment from said employee unless same is (i) required under a
contract between INFOSEEK and XEROX, or (ii) made pursuant to a written
disclosure Agreement between INFOSEEK and XEROX, or (iii) specifically
authorized in writing by INFOSEEK management, (3) solicit or accept
favoritism from said employee, and (4) enter into any outside business
relationship with said employee without full disclosure to, and prior
approval of, INFOSEEK management. As used herein: "employee" includes
members of the employee's immediate family and household, plus any
other person who
- -------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
5. 3/28/96
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Lexicons
is attempting to benefit from his or her relationship to the employee.
6. 3/28/96
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Lexicons
"XEROX" includes all employees and agents of XEROX. "Gift or benefit"
includes money, goods, services, discounts, favors and the like in any
form but excluding low value advertising items such as pens, pencils
and calendars. "Supplier" includes prospective, current and past
suppliers, and "favoritism" means partiality in promoting the interest
of XEROX over that of other suppliers. Such activity by XEROX shall
constitute breach of contract by XEROX and may further result in
XEROX' debarment.
XV. CONFIDENTIAL INFORMATION
15.01 INFOSEEK agrees not to intentionally disclose or intentionally make
available to any third party information received from XEROX
(hereinafter referred to as "CONFIDENTIAL INFORMATION") in any form
without the express written approval of the other party.
15.02 INFOSEEK shall not use such CONFIDENTIAL INFORMATION except to the
extent necessary to perform under this Agreement and shall not
intentionally circulate the CONFIDENTIAL INFORMATION within its own
organization except to those with a specific need to know such
CONFIDENTIAL INFORMATION. If written approval by XEROX is given to
INFOSEEK to disclose CONFIDENTIAL INFORMATION to a third party,
INFOSEEK shall impose similar confidential restrictions on such third
party to whom it discloses such CONFIDENTIAL INFORMATION.
15.03 The obligations on INFOSEEK recited herein shall terminate with respect
to any particular portion of such CONFIDENTIAL INFORMATION when and to
the extent that it is or becomes: (a) part of the public domain through
no fault of either party, (b) communicated by the party who owns the
CONFIDENTIAL INFORMATION to a third party free of any obligation of
confidence; (c) independently developed by the other party without any
reference to the CONFIDENTIAL INFORMATION; (d) known to the other party
free of any obligation of confidence.
15.04 In no event shall the obligation of either party as recited in 10.02
with respect to the CONFIDENTIAL INFORMATION extend beyond three (3)
years from the date of termination of this Agreement, except for XEROX
source code.
15.05 Upon request by XEROX after termination of this Agreement, INFOSEEK
agrees to promptly return the CONFIDENTIAL INFORMATION.
15.06 INFOSEEK agrees that:
(a) it will use its best efforts to ensure that Lexicons are
distributed to third parties only according to procedures which do not
compromise the security and copyrights of Lexicons;
(b) it will not knowingly permit anyone to use Lexicons including
portions thereof for the purpose of reverse-engineering;
(c) it will instruct its employees of the foregoing obligations and
prohibitions.
15.07 INFOSEEK shall cause each unit of the LICENSED SOFTWARE incorporating
Lexicons distributed by it or its OEMs or sub-licensors pursuant to
this Agreement to be subject to a standard limited use software
agreement.
15.08 INFOSEEK will use a reasonable and expected degree of care in
safeguarding the LICENSED SOFTWARE as is expected and customary for
those possessing information of like importance in safeguard and
security thereof.
15.09 Upon discovery of unauthorized transfers or misappropriation, INFOSEEK
will: (a) inform XEROX of known details thereof, (b) give reasonable
effort and assistance to XEROX in the recovery and return of such
unauthorized transfer or misappropriation; (c) provide all reasonably
necessary assistance in the enforcement of XEROX' rights against any
third party involved in such unauthorized transfer or misappropriation,
and (d) use its best endeavors to prevent further
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XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
Lexicons
unauthorized transfer or misappropriation.
XVI. ASSIGNMENT
16.01 This Agreement may not be assigned or transferred by either party
without the prior written approval of the other party; provided that
XEROX may assign its rights to its affiliates or to any purchaser of
all or substantially all of its Lexicons business, and INFOSEEK may
assign its rights hereunder, or any portion thereof, to any subsidiary
or affiliate of INFOSEEK or to any purchaser of all or substantially
all of its business for which the LICENSED SOFTWARE or Lexicons are
then licensed. Further, INFOSEEK's rights and obligations under this
Agreement may be exercised and performed in whole or in part by any
subsidiary or affiliate of INFOSEEK, provided that INFOSEEK shall
continue to be responsible to XEROX for the performance of its
obligations under this Agreement. Subject to the limitations heretofore
expressed, this Agreement shall inure to the benefit of and be binding
upon the parties, their successors, administrators, heirs and assigns.
In the event that Infoseek files for bankruptcy protection within the
three year term of this Agreement, the assignment of rights to LICENSED
SOFTWARE by Infoseek to any third party shall require the approval, in
writing, of Xerox.
XVII. MODIFICATION
17.01 This Agreement constitutes the entire Agreement of the parties as to
the subject matter hereof and supersedes all prior and contemporaneous
communications. This Agreement shall not be modified, except by a
written Agreement signed by duly authorized representatives of XEROX
and INFOSEEK.
XVIII. BANKRUPTCY
18.01 To the extent permitted by applicable law (including II. U.S.C. Section
365) the non-defaulting party may terminate this Agreement immediately
by written notice to the other in the event the other party makes an
assignment for the benefit of its creditors, admits in writing an
inability to pay debts as they mature, a trustee or receiver is
appointed respecting all or a substantial part of the other party's
assets, or a proceeding is instituted by or against the other party
under any provision of the Federal Bankruptcy Act and is acquiesced in
or is not dismissed within sixty (60) days, or results in an
adjudication of bankruptcy. To the extent applicable law prevents the
non-defaulting party from terminating this Agreement, if it should wish
to do so as described above, then the parties shall have only those
rights and remedies permitted by applicable law, including the United
States Bankruptcy Act, including but not limited to II U.S.C. Section
365. However the non-defaulting party, has the unrestricted right, at
its option, not to terminate this Agreement and to continue as the
non-exclusive distributor of the LICENSED SOFTWARE.
XIX. NON-PUBLICITY
19.01 Without prior written consent of the other party, neither INFOSEEK, nor
XEROX shall (a) make any news release, public announcement, public
denial or confirmation of this Agreement or its subject matter, or (b)
advertise or publish any facts relating to this Agreement. Such consent
will not be unreasonably withheld. This requirement will expire upon
the execution of this Agreement.
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XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
Lexicons
INFOSEEK and XEROX agree to make a joint press release to announce this
partnership relationship as soon as feasible after the execution of
this Agreement.
XX. JOINT MARKETING
INFOSEEK and XEROX agree to cooperate in and pursue future product
development and marketing arrangements with regard to products and
services relevant to their respective business plans. Each such
cooperative arrangement will be the subject of a separate agreement
between the parties.
XXI. CONTROLLING LAW
21.01 This Agreement shall be governed and construed in accordance with the
laws of the United States and the State of California.
XXII. GENERAL PROVISIONS
22.01 WAIVER Failure of either party to require strict performance by the
other party of any provision shall not affect the first party's right
to require strict performance thereafter. Waiver by either party of a
breach of any provision shall not waive either the provision itself or
any subsequent breach.
22.02 NO AGENCY It is agreed and understood that neither INFOSEEK nor XEROX
has any authority to bind the other with respect to any matter
hereunder. Under no circumstances shall either INFOSEEK or XEROX have
the right to act or make any commitment of any kind to any third party
on behalf of the other or to represent the other in any way as an
agent.
22.03 SURVIVAL The provisions of this Agreement shall, to the extent
applicable, survive the expiration or any termination hereof.
22.04 HEADINGS The headings and titles of the Sections of the Agreement are
inserted for convenience only, and shall not affect the construction or
interpretation of any provision.
22.05 SEVERABILITY If any provision of the Agreement is held invalid by any
law, rule, order or regulation of any government, or by the final
determination of any state or federal court, such invalidity shall not
affect the enforceability of any other provisions not held to be
invalid.
22.06 ENTIRE AGREEMENT This Agreement constitutes the entire Agreement of the
parties as to the subject matter hereof and supersedes any and all
prior oral or written memoranda, understandings and Agreements as to
such subject matter.
XXIII. ATTACHMENTS
23.01 THE TERMS AND CONDITIONS ON ATTACHMENTS ["I,"
"II," "III"] ARE ATTACHED HERETO AND MADE A PART HEREOF.
IN WITNESS WHEREOF, the parties have hereunto set their hands.
INFOSEEK CORPORATION XEROX
By: Andrew E. Newton By: Mohan Trikha
-------------------------------- ---------------------------------
Sig: Sig:
------------------------------- --------------------------------
Title: Vice President Title: Vice President & GM
----------------------------- ------------------------------
Date: March 29, 1996 Date: March 29, 1996
------------------------------ -------------------------------
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XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
LEXICONS
ATTACHMENT I - SPECIFICATIONS
DEFINITIONS
"Lexicons" refers to a state-of-the art engine for lexical processing which
serves the increasingly sophisticated needs of the market. The salient
characteristics of this technology are its abilities to map, or
linguistically connect, any surface form of a word to its canonical
base form, and return relevant information about a surface form,
including category (part of speech), tense, aspect, mood, person, or
number.
The Lexicons technology itself is language independent and enables the
same run-time software to be used with many different language modules.
The Japanese Lexicon is based on the same technology but requires
different run-time software than the European languages. The Lexicons
technology is the basic building block for complex tasks such as
Tokenization (Word Breaking), Morphological Analysis (Stemming),
Morphological Generation (returning surface forms from a base form),
and Part-of-Speech Tagging and Identification.
Lexicons is based on Xerox morphological tools, an API, and at least
one Lexicon. A Lexicon is developed in the Xerox Transducer Lexicon
Format, as produced with the Xerox Lexical Tools, and the Licensed
Utility (the run-time library for accessing lexical transducers
developed with the Lexical Tools). It is a linguistic product which
performs stemming, inflection and derivation (English only) as
illustrated in the following paragraphs:
Stemming: input "swam", outputs "swim"
Inflection: input "swim", outputs "swim", "swims",
"swam", "swum", "swimming"
Derivation: input "computer", outputs "computes",
"computation", "computational"
Lexicons with respect to this Agreement and License Grant refers only
* to the XEROX software for stemming and inflection of [ ]
operating on one of the following platforms: Win16 and Win 32, Sun OS
4.1.X or Solaris 2.X, to be specified by INFOSEEK. Lexicons will be
provided in run-time object code format.
"Documentation" MEANS:
- Any and all text, whether in written or electronic form,
describing the Lexicons, including but not limited to user
manuals, brochures, specifications, software descriptions, and
related materials normally needed for use with the Lexicons.
- Marketing literature describing the product and its features.
- Technical written information provided by Xerox for INFOSEEK
internal use in developing LICENSED SOFTWARE which includes
Design Documentation and Installation Documentation.
- Other written material describing Lexicons, as may have been
developed by XEROX for their end-users.
"LICENSED SOFTWARE" means any work derived from the combination of the Xerox
Lexicons and INFOSEEK Internet Search Software (code name "Moby") including:
1) INFOSEEK products incorporating Lexicons in whole or in part, or
other work derived from Lexicons.
2) All modifications, improvements, enhancements, additions,
derivative works, updates, releases and versions of the foregoing
products, including ports, of which derivation was created or developed
by or on behalf of INFOSEEK.
- ---------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
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LEXICONS
3) LICENSED SOFTWARE does not include other INFOSEEK products or
services which may become available henceforth and expand INFOSEEK's
market presence, open new markets, or replace LICENSED SOFTWARE.
SPECIFICATIONS
Lexicons includes the definition stated above and Lexicons provided in
the XEROX Transducer Lexicon Format, as produced with the XEROX Lexical
tools, and as defined in the description of the c-fsm format in the
publication "Finite State Lexicon Compiler" by Lauri Karttunen {ISTL-
NLTT-1933-04-02} and as may be defined in later technical appendices
attached to this Agreement.
ACCEPTANCE CRITERIA
Acceptance of the LICENSED SOFTWARE is contingent on completion of the
Acceptance Procedure described in 7.02 of this Agreement.
PLATFORM AVAILABILITY
English Lexicons for the Windows 16 bit and Sun OS 4.1.X client
platform environments are available within one week of executing this
Agreement. Windows 95 32 bit and Solaris 2.X platform environments in
beta form can also be made available immediately. Formal product for
these beta forms can be available within 30 days of delivery of beta.
The Japanese Lexicon is outlooked for availability in late third
quarter 1996.
TECHNICAL CONTACTS
For all technical matters, the point of contact will be:
XEROX CORPORATION INFOSEEK CORPORATION
Andrew Gelman John Nauman
------------------------------------
XSoft, A Division of Xerox Corporation Infoseek Corporation
------------------------------------
3400 Hillview Avenue 2620 Augustine Drive Suite 250
------------------------------------
Palo Alto, California 94304 Santa Clara, CA 95054
------------------------------------
(415) 813-7194 408-567-2773
------------------------------------
COPYRIGHT NOTICE
Copyright (c) 1996, Xerox, Inc. All Rights Reserved.
11. 3/28/96
13
XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
LEXICONS
ATTACHMENT II - ROYALTY/PERIODIC FEES
In consideration of the rights granted INFOSEEK by XEROX in the Software
Distribution & License Agreement to which this Attachment II is a part, INFOSEEK
shall pay to XEROX the Royalties and Periodic Fees listed herein.
TERM OF AGREEMENT: This Agreement is for three years, effective on the execution
date, and shall be non-cancelable without cause. At the conclusion of
the three year term and upon payment of all moneys due, INFOSEEK will
be granted a fully paid up license to use Lexicons, "as is" on that
date, in LICENSED SOFTWARE, in perpetuity. Xerox will not be liable to
provide any further maintenance or updates once the perpetual license
has been granted.
At least 90 days prior to the expiration of this Agreement, INFOSEEK
and XEROX shall open discussion and agree on terms for product updates
and maintenance beyond the period of this Agreement. It is expected
that such terms will be based in part on the financial condition of
INFOSEEK at that time.
ADVANCE PAYMENTS: INFOSEEK shall make Advance license payments to XEROX in the
amounts shown below on the indicated dates. Such payments are for the
English Lexicons, and for platforms on which Lexicons is licensed and
shall be non-refundable.
Annual Advance:
* A. Upon execution of this Agreement (March 31, 1996): [ ]
B. On each 12th month anniversary of the Execution of this Agreement:
* [ ]
ROYALTY: INFOSEEK shall pay to XEROX the following royalty based on Gross
Advertising revenues billed by INFOSEEK for the LICENSED SOFTWARE.
* - Royalty Rate: [ ]
Royalties due to XEROX in a given Agreement year shall be credited
against the Advance Payment for that year at a 100% rate until the
Advance has been depleted.
ANNUAL MAXIMUM PAYMENT: In consideration of the fact that INFOSEEK is a
relatively new, emerging company, XEROX agrees that the amount of
royalties due to XEROX in each year of this Agreement will be limited
to the amounts shown, exclusive of the one time fees for additional
languages, lexical enhancements, technology fees, sub-licensing fees,
maintenance fees or consulting services, if applicable, which are
denoted in the sections following.
- Maximum Royalty in 1996: $200,000
- Maximum Royalty in 1997: $200,000
- Maximum Royalty in 1998: $200,000 ($300,000 if Infoseek's revenues
* exceed [ ].
*ADDITIONAL [ ]: INFOSEEK may license [ ] Lexicons
* from XEROX by paying a one-time fee for each [ ] licensed.
This fee is in addition to the Royalty and Annual Maximum Payment
described above.
* - [ ]
* - [ ]
* - [ ]
* Payment of the fee for additional [ ] will be due when INFOSEEK
* places an order and the [ ] is delivered by XEROX to INFOSEEK.
* The [ ] Lexicon is expected to become available in [ ].
* The [ ] Lexicons are available now.
- -------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
12. 3/28/96
14
XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
LEXICONS
DEFAULT PRODUCT: INFOSEEK agrees that LICENSED SOFTWARE shall become the
INFOSEEK Internet search default product as soon as practicable after
the execution of this Agreement. It is expected that this will occur in
* [ ].
TECHNOLOGY FEE: XEROX' normal technology fee associated with the licensing of
* XEROX Lexical Technology is [ ] plus [ ] maintenance of [ ] of the
Technology fee. In consideration of the banner advertising to be
* provided by INFOSEEK to XEROX, as described below, XEROX [ ]
for the licensing of the Executables Library and the API.
MAINTENANCE: Annual maintenance charges with respect to the Executables
* Library and the API are [ ]
*ADVERTISING: [ ] of the Technology Fee noted above, INFOSEEK will provide
* to XEROX Headline Banner advertising equal in value to [ ]. The
content and term of this Advertising program will be agreed by
representatives of both parties after the execution of this Agreement.
Said advertising value must be used by XEROX prior to the end of the
third year of this Agreement.
INFOSEEK will provide XEROX with monthly reports on the number of hits
and queries on which the XEROX banner appeared, plus the demographics
of the hits as can be recorded by INFOSEEK systems.
HYPERTEXT LINK: A Hypertext link and a XEROX technology statement shall appear
on every Search Results page supplied by the LICENSED SOFTWARE,
at no charge to XEROX. Said statement and link shall appear
near the bottom of the page. The appearance, wording and size
of the XEROX technology statement shall be agreed by parties
after execution of this Agreement and shall appear on the
INFOSEEK Results pages concurrent with the LICENSED SOFTWARE.
INFOSEEK will provide to XEROX monthly reports on the search activity,
including but not limited to the number of results pages and the
number of hits on the XEROX link.
XEROX and INFOSEEK agree to discuss future placement of the Hypertext
link in any extension of this Agreement.
The parties agree that the value of the Hypertext link may be as much
as several hundred thousand dollars of business to XEROX.
*SUB-LICENSING: INFOSEEK may sublicense LICENSED SOFTWARE to a maximum of [ ]
financial supporters (investors) in INFOSEEK during the term of this
Agreement. For each investor so licensed, INFOSEEK agrees to pay
* XEROX [ ]. Once the [ ] has been
* granted, the [ ] charges shall no
longer be payable. Said payments will be due to XEROX upon execution
of the Investor Agreement and on succeeding anniversaries of such
agreements.
* One permitted sublicensee shall be [ ]
* and any Affiliate or Successor of [ ] and such
Affiliates and Successors collectively referred to herein as
* [ ]. "Affiliate" shall mean any entity of which
* [ ] owns at least [ ] of the equity, or any entity that owns
* at least [ ] of the equity of [ ] "Successor" means any
* entity that has a right to provide the [ ]
* or successor service. [ ]
* The [ ] charge shall apply to such [ ].
- -------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
13. 3/28/96
15
XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
LEXICONS
Should INFOSEEK desire to enter into any other sublicensing
arrangements concerning LICENSED SOFTWARE, whether with Investors or
with commercial customers or OEMs, will require the written approval
of XEROX and an agreed royalty schedule.
SUMMARIZATION: Should INFOSEEK desire to license Xerox's summarization
technology, XEROX and INFOSEEK will agree on terms and conditions as
an amendment to this Agreement.
INTERNAL USE: No royalties shall be due from INFOSEEK for units of LICENSED
SOFTWARE which are used internally specifically for testing,
evaluation, support, marketing, demonstration or training purposes.
*EXCLUSIVITY: For a period of [ ], effective upon execution of this
* Agreement, and subject to INFOSEEK [ ],
* XEROX shall not [ ] Lexicons
* to [ ]. Should
INFOSEEK fail to introduce a service using LICENSED SOFTWARE on the
* Internet by [ ], this exclusivity provision will
* [ ].
PAYMENT AND REPORTING: Within thirty (30) days after the end of each calendar
quarter during the term hereof, INFOSEEK shall provide XEROX with a
written report setting forth the amount of billed advertising revenue
related to LICENSED SOFTWARE and the royalties due to XEROX for that
quarterly period. A check or wire transfer of funds shall accompany
the report.
AUDIT: INFOSEEK shall, for a period of two (2) years following the date of
each report issued, keep records adequate to verify the substance of
the report and any accompanying payment. XEROX shall have the right,
no more than once each calendar year, to select a mutually acceptable
independent Certified Public Accountant to inspect the records of
INFOSEEK at a single location on reasonable notice and during regular
business hours to verify the reports and payments made hereunder. The
entire cost of such inspection shall be borne by XEROX, and such
Certified Public Accountant shall not disclose to XEROX any
information other than information relating to the computation and
accuracy of such reports and payments. Any information as to
INFOSEEK's customers will be treated as INFOSEEK CONFIDENTIAL
INFORMATION and shall not be disclosed. If the audit reveals that
INFOSEEK has under-reported revenues of LICENSED SOFTWARE by more five
percent (5%) in any calendar year, INFOSEEK shall reimburse XEROX for
the audit fees. In any event, INFOSEEK shall promptly repay, or apply
against any outstanding prepaid Annual Fees, the underpayment.
CUSTOM EFFORT: Requests for custom effort with regard to Lexicons, if agreed
* by the parties, will be charged at a rate of [ ] per day.
- -------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
14. 3/28/96
16
XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
LEXICONS
ATTACHMENT III - TECHNICAL SUPPORT
DEFINITIONS
CUSTOMER means the end-user or OEM using the LICENSED SOFTWARE.
BUG FIXING means modifications to source code or Documentation, or revisions,
including both the source code and object code thereto, which correct
BUGs or provide other updates and corrections. BUG FIXING will consist
of XEROX using reasonable efforts to design, code, and implement
programming changes to Lexicons and modifications to the documentation
in order to correct BUGs such that Lexicons are brought into
conformance with the Specifications listed in Attachment I. BUG FIXING
will also consist of XEROX advising INFOSEEK with regard to Lexicons
in order to create the LICENSED SOFTWARE.
UNILATERALENHANCEMENTS are changes to Lexicons, which XEROX do as a consequence
of their normal business operations and ensuing BUG FIXING for others
than INFOSEEK, with the aim to keep the Lexicons up-to-date and
according to the Specification.
ENHANCEMENT REQUESTS will be considered and enhancements delivered by XEROX at
its own discretion. In cases where INFOSEEK is willing to provide
compensation for certain enhancements, and the parties agree on
content and schedule, INFOSEEK and XEROX will enter into a separate
licensing agreement. ENHANCEMENT REQUESTS are such enhancements to the
Lexicons, which extend or modify the Specifications.
LIAISONS
XEROX and INFOSEEK are represented by their respective Technical Contacts
(listed in Attachment I) or by certain designated individuals (limited
in number).
MAINTENANCE FEE
XEROX shall provide BUG FIXING and UNILATERAL ENHANCEMENTS at the fees set forth
in Appendix II.
MAINTENANCE LOCATION
All BUG FIXING provided under this Agreement shall be provided at XEROX'
facilities, unless XEROX and INFOSEEK mutually agree that it is
necessary to provide such services at INFOSEEK's facilities.
TERM
BUG FIXING is effective on the date of execution of this Agreement and will be
in effect, until the Agreement is terminated, for the then current
version of the Lexicons shipping to customers, unless otherwise agreed
by the parties.
RESPONSIBILITY
XEROX will provide BUG FIXING to INFOSEEK as INFOSEEK's CUSTOMERs may require
from INFOSEEK in order for INFOSEEK to fulfill its maintenance obligations to
its CUSTOMERs. XEROX will not be expected to provide BUG FIXING directly to any
CUSTOMERs, unless XEROX enter into a separate maintenance agreement with such
CUSTOMERs.
Should XEROX discontinue all maintenance and distribution of the Lexicons, a
copy of the source code and BUG FIXING and product modification records will be
made available to INFOSEEK as CONFIDENTIAL INFORMATION in order for INFOSEEK to
fulfill its maintenance obligations to its CUSTOMERs.
RESPONSE TIME
15. 3/28/96
17
XSOFT / INFOSEEK SOFTWARE DISTRIBUTION AND LICENSE AGREEMENT
LEXICONS
Email support will be the primary support provided by XEROX. XEROX provides
telephone support during XEROX' normal days of business operation (9 AM - 5 PM
(PST)).
For each BUG FIXING, INFOSEEK and XEROX will follow the procedure outlined
below:
Day 0 INFOSEEK's CUSTOMER logs a BUG; INFOSEEK determines that BUG is
related to Lexicons.
Day 0-1 Request is sent to XEROX via e-mail or telephone;
Day 1-2 XEROX acknowledges receipt of request and classifies the BUG
according to the BUG Classification table following.
Day 2-6 XEROX responds, as per the BUG Classification table,
identifying the nature and the cause of the problem and (a) an
estimated BUG FIXING date; or (b) a workaround or patch, if such is
available.
Day 3-7 INFOSEEK communicates the response to the customer.
BUG Classification Table
================================================================================================================
PROBLEM DESCRIPTION XSOFT RESPONSE TIME
- ----------------------------------------------------------------------------------------------------------------
1. PROBLEM SOLVED; CASE CLOSED
- ----------------------------------------------------------------------------------------------------------------
2. Minor Problem. Customer is having a problem with a particular feature or 4 working days, Solution
function related to Lexicons or requests a product improvement or or Action plan
enhancement. Other aspects of Lexicons are functioning normally. The
LICENSED SOFTWARE is up, with no significant impact to production.
- ----------------------------------------------------------------------------------------------------------------
3. Moderate Problem. Customer is having a Lexicons problem on his 40 hours, Solution or
workstation that is preventing the use of LICENSED SOFTWARE. The Action plan
system is up but production capability is reduced. All system functions seem
to be operating normally. There is no data loss. Indicators are inability of a
non-critical application to run, continuing but infrequent failure requiring
operational intervention, or non-critical product feature or function does not
work.
- ----------------------------------------------------------------------------------------------------------------
4. Severe Problem. Lexicons crash caused the workstation to go down. 20 hours, Solution or
User cannot run any software on workstation. Problem is characterized by Action plan, Status update
the inability of some critical application to run, the failure requires frequent every two (2) days.
operational intervention, and/or there is a recoverable data loss.
- ----------------------------------------------------------------------------------------------------------------
5. Catastrophic Problem. Lexicons has caused LICENSED SOFTWARE to Immediate action, Daily
go down at the server level. Users cannot access LICENSED SOFTWARE status reports.
and have no production capability on that server. The problem is
characterized by inability to run critical applications and/or unrecoverable
data loss.
================================================================================================================
With respect to ENHANCEMENT REQUESTS, XEROX makes no commitments as to response
time, but will endeavor, to the extent resources are available, to evaluate the
requested enhancement and to provide estimates of the time and cost to
accomplish same. If applicable, INFOSEEK initiates discussions with XEROX on the
fee for the proposed enhancement.
SERVICE OBLIGATION
The services set forth herein shall be expressly contingent upon (1) INFOSEEK
promptly reporting any errors in the Lexicons or related documentation to XEROX
in writing; (2) Not modifying the Lexicons without written consent of XEROX; and
(3) INFOSEEK utilizing the Lexicons only as intended.
16. 3/28/96
EX-10.35
6
LETTER OF AGREEMENT W/ HNC SOFTWARE 4/2/96
1
EXHIBIT 10.35
* CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
April 1, 1996 HNC Software Inc.
5930 Cornerstone Court West
San Diego, CA 92121-3728
Tel: 619.546.8877
Fax: 619.452.6524
Robin Johnson
Infoseek Corporation
2620 Augustine Drive, Suite 250
Santa Clara CA 95054
Dear Robin:
The purpose of this letter is to set forth the terms and conditions whereby HNC
will provide Infoseek with a copy of HNC's CONVECTIS(TM) software (the "HNC
Software") prior to the execution of a definitive software license agreement
between the parties (the "Definitive Agreement"), which the parties acknowledge
is currently under negotiation between them.
As such, it is agreed that:
1. HNC's provision of the HNC Software to Infoseek shall be subject to the terms
and conditions of the Definitive Agreement as well as the Mutual Confidentiality
and Non-Disclosure Agreement executed by the parties as of April 2, 1996 (the
"Non-Disclosure Agreement"). It is acknowledged that the HNC Software shall be
considered "Confidential Information" for purposes of the Non-Disclosure
Agreement.
2. In the event the Definitive Agreement is not executed by both parties on or
before June 30, 1996, Infoseek shall immediately discontinue all use of the HNC
Software and, within ten (10) days thereof, return the original and all copies
of the HNC Software (as well as any and all HNC Confidential Information in
Infoseek's possession) to HNC. Such shipment shall be accompanied by a written
statement signed by an officer of Infoseek certifying that all HNC Software and
HNC Confidential Information provided to Infoseek in connection with the HNC
Software (as well as any copies thereof) has been either returned to HNC or
destroyed by Infoseek.
3. In the event of any return of the HNC Software as described in Section 2
above, HNC shall refund to Infoseek all amounts actually paid to HNC by
Infoseek in accordance with a quotation from HNC dated March 26, 1996, less
*[ ], which represents [ ] of the Installation Fee described in said quotation.
Please acknowledge your agreement to the above-referenced terms by signing this
letter in the space below and returning one copy of this letter to my attention
by return fax and U.S. Mail.
Sincerely, AGREED:
HNC SOFTWARE INC. INFOSEEK CORPORATION
Michael A. Thiemann By:________________________________
Executive Vice President Robin Johnson, President and CEO
Date signed:_______________________
- ----------------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
2
March 26, 1996 HNC Software Inc.
5930 Cornerstone Court West
San Diego, CA 92121-3728
Tel: 619.546.8877
Fax: 619.452.6524
Infoseek Corporation
2620 Augustine Drive, Suite 250
Santa Clara CA 95054
Re: QUOTATION
The purpose of this letter is to provide Infoseek with a quotation with respect
to Infoseek's licensing of HNC's CONVECTIS(TM) product ("CONVECTIS").
This quotation shall not be construed as a license to Infoseek with respect to
CONVECTIS; such a license shall only be extended to Infoseek in accordance with
a software license agreement executed by both HNC and Infoseek. This quotation
assumes that HNC and Infoseek will enter into such a software license agreement
with respect to CONVECTIS as soon as reasonably practicable. However, this
quotation does not include all of the terms and conditions to be contained in
any such software license agreement.
As such, HNC provides the following quotation to Infoseek with respect to
CONVECTIS:
===============================================================================
Item Amount(3)
- -------------------------------------------------------------------------------
*Installation Fee(1) [ ]
- -------------------------------------------------------------------------------
*Annual Convectis License(2) [ ]
(includes one Convectis tuning workstation)
- -------------------------------------------------------------------------------
*Additional Convectis tuning workstation license(2) [ ]
- -------------------------------------------------------------------------------
*Annual Convectis Maintenance (includes one Convectis tuning [ ]
workstation license)(2)
- -------------------------------------------------------------------------------
*Additional Convectis tuning workstation maintenance(2) [ ]
===============================================================================
(1) A portion of this fee may be refundable in accordance with the terms and
conditions to be contained in the software license agreement.
(2) Quote is limited to first year fees only; fees for any subsequent year(s)
shall be paid in accordance with the terms and conditions to be contained in the
software license agreement.
(3) Fees shall be due and payable in accordance with the mutually agreed upon
terms of the Definitive Agreement.
Travel-related Expenses.
The Installation, License, and Maintenance fees set forth above and in any
software license agreement are exclusive of any travel-related expenses incurred
by HNC with respect to the subject matter of this quotation. Accordingly, any
travel related expenses HNC incurs with respect to the subject matter of this
quotation are to be reimbursed to HNC as provided herein in addition to the
payment of any other fees payable to HNC hereunder. Actual expenses will be
invoiced monthly and full reimbursement for such expenses will be due and
payable to HNC from Infoseek within thirty (30) days of Infoseek's receipt of
HNC's invoice therefor at the following rates, subject to increase as provided
in the section entitled "Consumer Price Index Adjustments" below:
Hotel (per day maximum) $ 160.00 per person
Meals (per day maximum) $ 40.00 per person
Automobile (full or luxury size) HNC's Actual Cost
Business Airfare HNC's Actual Cost
Courier Costs HNC's Actual Cost
Out-of-Pocket Expenses HNC's Actual Cost
Automobile mileage (if personal car) IRS Allowed Standard
- --------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
Page 1 of 2
3
Infoseek Corporation
March 26, 1996
_______________
CONSUMER PRICE INDEX ADJUSTMENTS.
- --------------------------------
All fees, prices, labor rates and expense reimbursement rates set forth in this
quotation and in any software license agreement will be reviewed at the end of
each anniversary of the software license agreement's effective date, including
each year during any renewal of the software license agreement. This review will
commence on the first day of the anniversary month of the software license
agreement effective date and adjustments will be made to all such prices, labor
rates and expense reimbursement rates with reference to the percentage increase
(if any) of the Consumer Price Index (CPI), for the San Diego, California area,
but such increases will not be made at an annual rate in excess of CPI increase
plus four percent (4%). No decrease in any fee, price, labor rate or expense
reimbursement rate will be made.
This quotation shall be effective until April 2, 1996.
Sincerely,
HNC SOFTWARE INC.
Raymond V. Thomas
Vice President, Finance and Administration
Chief Financial Officer
cc: Michael Thiemann
John Gaffney
Page 2 of 2
4
HNC/Infoseek Mutual Confidentiality and Non-Disclosure Agreement
MUTUAL CONFIDENTIALITY
AND NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement is entered into as
of April 2, 1996 (the "Effective Date") by and between HNC Software Inc., a
Delaware corporation, and Infoseek, a California corporation (hereinafter
collectively referred to as "the parties").
WHEREAS, the parties recognize that each other's business involves
specialized and proprietary knowledge, information, methods, processes,
techniques, and skills peculiar to their security and growth. The parties
acknowledge that any disclosure of such methods, processes, skills, financial
data, or other confidential or proprietary information would substantially
injure the party's business, impair the party's investments and goodwill, and
jeopardize the party's relationship with the party's clients and customers;
WHEREAS, the parties presently desire to consult with each other with respect
to certain matters;
WHEREAS, in the course of such consultation the parties anticipate disclosing
to each other certain information of a novel, proprietary, or confidential
nature, and desire that such information be subject to all of the terms and
conditions set forth below.
NOW, THEREFORE, the parties hereto, in consideration of the premises and
other good and valuable consideration, agree as follows:
1. Confidential Information. "Confidential Information" shall mean and include
any information which relates to the financial and/or business operations of
each party, including, but not limited to, information relating to each party's
customers, products, processes, financial condition, employees, manufacturing
techniques, experimental work and/or trade secrets. Said Confidential
Information is deemed proprietary by the parties hereto. The Subject Matter of
this Agreement, as well as any additional information disclosed hereunder that
is deemed Confidential Information by the parties is described in Exhibit A
attached hereto and incorporated herein by this reference.
2. Use of Confidential Information. Each party agrees not to use the other's
Confidential Information for any purpose other than for the specific
consultation regarding the subject matter of this Agreement. Any other use of
such Confidential Information shall be made only upon the prior written consent
from an authorized representative of the party which disclosed such information
(hereinafter the "Disclosing Party") or pursuant to subsequent agreement between
the parties.
3. Non-Disclosure of Proprietary Information. The parties agree that from the
date of receipt, the party receiving the Confidential Information (hereinafter
the "Receiving Party") shall not disclose Confidential Information to any other
person, firm, corporation or other entity or use it for its own benefit except
as provided in this Agreement. The Receiving Party shall not publish, divulge,
communicate, or reveal any Confidential Information to any person, corporation,
or other third party or to any of Receiving Party's employees who do not have a
need to know such Confidential Information with respect to their job duties. The
Receiving Party shall use the same degree of care to avoid publication or
dissemination of the Confidential Information as it would with respect to its
own confidential information. These efforts shall specifically include document
control measures, such as numbered copies and sign out logs, and imposing on all
employees, agents and other representatives of Receiving Party restrictions at
least as strict as required by this Agreement.
"Confidential Information" shall not include information, technical data or
know-how which:
(a) is already known to the Receiving Party at the time of disclosure and is
not otherwise subject to restriction;
(b) is or becomes publicly known through no wrongful act of the Receiving
Party;
(c) rightfully disclosed to Receiving Party by a third party who has no
obligation of confidentiality to the Disclosing Party;
(d) is independently developed by the Receiving Party; or
(e) is approved for release by written authorization of the Disclosing Party.
4. Marking. Confidential Information may be disclosed either visually, orally or
in writing. Written material shall be identified and labeled "Confidential" or
"Proprietary" to discloser. Verbal or visual information should be identified as
"Confidential Information" when disclosed.
Confidential and Proprietary Information 1
5
HNC/Infoseek Mutual Confidentiality and Non-Disclosure Agreement
5. Return of Confidential Information. All Confidential Information and copies
and extracts thereof shall be promptly returned to Disclosing Party three years
from the effective date of this Agreement, or at any time within thirty (30)
days of receipt of a written request by the Disclosing Party for the return of
such Confidential Information.
6. Ownership of Information. The parties agree that any Confidential
Information revealed to the other by the Disclosing Party remains the exclusive
property of the Disclosing Party and its successors and assigns, unless
otherwise expressly provided in writing signed by an authorized representative
of the Disclosing Party.
7. No License Granted. Nothing contained in this Agreement shall be construed
as granting or conferring any rights to the Receiving Party by license or
otherwise, expressly, impliedly or otherwise, for any information, discovery or
improvement made, conceived, or acquired after the date of this Agreement, or
for any invention, discovery, or improvement made, conceived or acquired prior
to the date of this Agreement.
8. Arbitration and Equitable Relief.
(a) Arbitration. Except as provided in Section 8(b) below, the parties agree
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement shall be
settled by arbitration to be held in San Diego County, California in accordance
with the Commercial Arbitration Rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. In the event of arbitration, a reasonable amount of
discovery may be undertaken by the parties. The decision of the arbitrator shall
be final, conclusive and binding on the parties to the arbitration. Judgment may
be entered on the arbitrator's decision in any court having jurisdiction.
(b) Equitable Remedies. The parties agree that it would be impossible or
inadequate to measure and calculate the Disclosing Party's damages from any
breach of the covenants set forth herein. Accordingly, the parties agree that if
in the event of a breach of any of the covenants contained in this Agreement,
the affected party will have available, in addition to any other right or remedy
available, the right to obtain an injunction from a court of competent
jurisdiction restraining such breach or threatened breach and to specific
performance of any such provision of this Agreement. The parties further agree
that no bond or other security shall be required in obtaining such equitable
relief and the parties hereby consent to the issuance of such injunction and to
the ordering of specific performance.
(c) Legal Expenses. If any action or proceeding is brought for the
enforcement of this Agreement, or because of an alleged or actual dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party shall be entitled to
recover reasonable attorneys' fees and other costs incurred in such action or
proceeding in addition to any other relief to which it may be entitled.
9. Term. This Agreement shall expire two (2) years from the Effective Date, but
may be terminated prior to expiration by either party giving thirty (30) days'
prior written notice to the other party; provided, however, the obligations to
protect the Confidential Information in accordance with this Agreement shall
survive for a period of five (5) years from the date of the last disclosure of
Confidential Information is made under this Agreement.
10. No Formal Business Obligations. This Agreement shall not constitute, create,
give effect to, or otherwise imply a joint venture, pooling arrangement,
partnership, or formal business organization of any kind, nor shall it
constitute, create, give effect to, or otherwise imply an obligation or
commitment on the part of either party to submit a proposal to or perform a
contract with the other party. Nothing herein shall be construed as providing
for the sharing of profits or loss arising out of the efforts of either or both
parties. Neither party will be liable to the other for any of the costs
associated with the other's efforts in connection with this Agreement.
11. General Provisions.
(a) Governing Law. This Agreement will be governed by the laws of the State
of California.
(b) Severability. If one or more of the provisions in this Agreement are
deemed void by law, then the remaining provisions will continue in full force
and effect.
(c) Successors and Assigns. This Agreement will be binding upon the
successors and/or assigns of the parties.
(d) Headings. All headings used herein are intended for reference purposes
only and shall not affect the interpretation, or validity of this Agreement.
Confidential and Proprietary Information 2
6
HNC/Infoseek Mutual Confidentiality and Non-Disclosure Agreement
(e) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter of this
Agreement. Any amendment or modification of this Agreement shall be in writing
and executed by a duly authorized representative of the parties.
The parties, by the signatures of their authorized representatives appearing
below, acknowledge that they have read and understand each and every term of
this Agreement and agree to be bound by its terms and conditions.
HNC Software Inc. Infoseek Corporation
5930 Cornerstone Court West 2620 Augustine Drive, Suite 250
San Diego, CA 92121-3728 Santa Clara, CA 95054
By: By:
----------------------------- -----------------------------
Michael A. Thiemann Robin Johnson
Executive Vice President CEO
Confidential and Proprietary Information 3
7
HNC/Infoseek Mutual Confidentiality and Non-Disclosure Agreement
EXHIBIT A
SUBJECT MATTER; ADDITIONAL CONFIDENTIAL INFORMATION
HNC (which shall be considered the Disclosing Party for purposes of this Exhibit
A) may disclose information with respect to the following in connection with
this Agreement. The parties agree that any such information disclosed shall be
considered Confidential Information for purposes of this Agreement:
Any and all information from any and all verbal, electronic, and/or written
communications (whether in the form of slides, handouts, letters,
memoranda, agreements, facsimile transmissions, meetings, conference and
other telephone calls, diskettes, files, tapes, and/or any other mode) with
respect to the HNC products known as SelectCast(TM), Convectis(TM), related
products, and/or related concepts, proposals, data sources, plans, markets,
customers, pricing, schedules, development efforts (including future
product functionality and release plans), decision technology and/or
models, software (including source code, object code and/or documentation),
numerical data processing algorithms, product and software design
specifications and/or functionality, and/or ideas.
Confidential and Proprietary Information 4
EX-10.36
7
AGREEMENT IN PRINCIPLE W/ HNC 3/21/96
1
EXHIBIT 10.36
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL
PORTION HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION
March 19, 1996
Mr. Robin Johnson, CEO
Infoseek Corporation
2620 Augustine Drive, Suite 250
Santa Clara, CA 95054
Dear Mr. Johnson:
This shall serve as a letter of intent ("Agreement in Principle") by and
between Infoseek Corporation ("Infoseek") and HNC Software Inc. ("HNC") wherein
the parties wish to set forth the terms and conditions whereby they propose to
establish a cooperation agreement with respect to the use of HNC's proprietary
SelectCast(TM) intelligent advertising server product in the Infoseek
environment.
The parties acknowledge their agreement and understanding that this Agreement
in Principle has been prepared to set forth the basic terms and conditions
under which the parties propose to enter into a definitive written agreement
(the "Definitive Agreement") providing for the parties to jointly cooperate
with respect to the development and marketing of a version of SelectCast to be
used in the Infoseek environment. In connection therewith, both parties will
cooperate with each other and use their respective reasonable best efforts to
negotiate, prepare, and execute a Definitive Agreement as soon as reasonably
practicable, but no later than April 30, 1996.
As such, the parties agree as follows:
1. Development. The parties shall, in good faith, develop an outline of the
project to be undertaken hereunder within five (5) days of the Effective Date.
2. Exclusivity. During the term of this Agreement in Principle, Infoseek shall
not contract, engage, or otherwise work with, any other parties with respect to
the development, use, and/or operation of a system similar and/or competitive
with SelectCast. Similarly, HNC shall not, during the term of this Agreement in
Principle, contract, engage, or otherwise work with, any other parties with
respect to the development, use, and/or operation of a system [ ] SelectCast
*[ ].
--------
Page 1 of 5
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
2
3. Compensation. Infoseek shall compensate HNC with respect to HNC's
*performance hereunder, at a rate of [ ] of HNC's standard time and materials
rates, which are detailed in Exhibit 1 hereto, up to a maximum cumulative
*amount of [ ]. A preliminary analysis of the scope of phase 1 of the
deliverables indicates that this amount should be sufficient to deliver the
phase 1 version of the system. Said maximum cumulative amount may only be
increased upon the prior written agreement of Infoseek. HNC shall invoice
Infoseek in the manner and at the address indicated in Exhibit 2 hereto. Each
party shall be responsible for payment of its own travel expenses with respect
to its respective performance hereunder.
4. Public Disclosure; Confidential Information. The parties acknowledge that
concurrently with the execution of this Agreement in Principle, they have
executed a Mutual Confidentiality and Non-Disclosure Agreement (the
"Non-Disclosure Agreement") with respect to the exchange of confidential
information pursuant to the undertaking described in this Agreement in
Principle. Neither party shall make any public disclosure with respect to the
subject matter of this Agreement in Principle without the prior written consent
of the other party, such consent shall not be unreasonably withheld.
5. Term and Termination. This Agreement in Principle shall remain in effect
until the Definitive Agreement is executed or May 31, 1996, whichever comes
first. In any event, this Agreement in Principle may be earlier terminated by
either party for any reason upon at least thirty (30) days prior written notice
to the other party. In the event of any termination of this Agreement in
Principle, Infoseek shall pay HNC for any time and materials expenses accrued
and payable to HNC up through the effective date of termination.
It is understood that this Agreement in Principle does not contain all matters
to be contained in the Definitive Agreement, which the parties shall undertake
to negotiate in accordance with this Agreement in Principle. As such, the
parties acknowledge that the terms of the Definitive Agreement are not yet
agreed, and there are no contractual and/or enforceable terms with respect
thereof in existence at the present. Notwithstanding the two preceding
sentences of this paragraph, the provisions of sections 2, 3, 4, and 5 of this
Agreement in Principle and the provisions of the Non-Disclosure Agreement shall
constitute a binding agreement of the parties unless and until such are
superseded by the Definitive Agreement.
--------
Confidential and Proprietary Information Page 2 of 5
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
3
If the foregoing accurately summarizes our understanding, we request that
Infoseek approve this Agreement in Principle and evidence such approval by
causing the enclosed copy of this Agreement in Principle to be signed on its
behalf, dated and returned to HNC whereupon this Agreement in Principle shall
become effective. This Agreement in Principle may be executed in counterparts,
all of which together shall constitute one and the same agreement.
Sincerely, AGREED:
HNC SOFTWARE INC. INFOSEEK
By:
------------------------
Michael A. Thiemann Robin Johnson
Executive Vice President Chief Executive Officer
Date Signed:
---------------
"Effective Date"
Confidential and Proprietary Information Page 3 of 5
4
EXHIBIT 1
TIME AND MATERIALS RATES
The following table reflects HNC standard time and materials hourly rates as
well as the time and materials hourly rates to be paid to HNC by Infoseek in
accordance with this Agreement in Principle.
-------------------------------------------------------------------------------
JOB TITLE HNC STANDARD HOURLY DISCOUNTED HOURLY LABOR
LABOR RATE RATE IN ACCORDANCE WITH
SECTION 3 OF THIS AGREEMENT
IN PRINCIPLE
-------------------------------------------------------------------------------
*Corporate Officer [ ] [ ]
-------------------------------------------------------------------------------
*Director [ ] [ ]
-------------------------------------------------------------------------------
*Manager [ ] [ ]
-------------------------------------------------------------------------------
*Senior Staff Scientist [ ] [ ]
-------------------------------------------------------------------------------
*Staff Scientist [ ] [ ]
-------------------------------------------------------------------------------
*Software Engineer [ ] [ ]
-------------------------------------------------------------------------------
*Administrative Support [ ] [ ]
-------------------------------------------------------------------------------
TRAVEL-RELATED EXPENSES
As indicated in Section 3 of the Agreement in Principle, each party shall be
responsible for bearing its own travel-related expenses with respect to its
respective performance hereunder.
- --------
Confidential and Proprietary Information
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
Page 4 of 5
5
EXHIBIT 2
PAYMENT TERMS
1. Monthly Invoicing. HNC shall invoice Infoseek on a monthly basis with respect
to time and materials charges incurred by HNC during the previous calendar
month. Said billings shall be in accordance with the rates set forth in Exhibit
1. Such invoices shall be due and payable net thirty (30) days from date of
receipt by Infoseek. Unless otherwise advised in writing by Infoseek, HNC shall
direct all such invoices to Infoseek at the following address:
Infoseek
Attention: ________________________________
Street Address: ___________________________
City/State/Zip: ___________________________
Telephone: (___) __________________________
Fax: (___) ________________________________
2. Taxes. All payments by Infoseek to HNC under this Agreement in Principle for
any fees will be exclusive of any sales, use, service, value added or
withholding taxes, or any other levy, tariff, duty or tax of any kind whatsoever
imposed by any governmental authority with respect to the services rendered or
expenses incurred by HNC hereunder (other than a tax imposed upon HNC's income).
Infoseek agrees to pay, within thirty (30) days of receipt of the applicable HNC
invoices, any such tax whenever such tax is imposed by a governmental authority.
3. Late Fees. Any payment due to HNC hereunder that remains unpaid for more than
thirty (30) days after the date such payment is due to HNC hereunder is subject
to a one and one-half (1-1/2%) percent per month late fee.
Confidential and Proprietary Information Page 5 of 5
EX-10.42
8
INFOSEEK/NYNEX AGREEMENT 3/29/96
1
EXHIBIT 10.42
* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
INFOSEEK/NYNEX AGREEMENT
NYNEX Information Technologies Company ("NYNEX") 35 Village Road, Middleton,
MA 01949
TERMS AND CONDITIONS
1. NYNEX is contracting with Infoseek Corporation ("Infoseek") for the display
of the NYNEX Big Yellow icon ("Icon") on the command bar of the Infoseek Guide
Service or successor service ("Service"), and for the display of an Infoseek
Guide icon ("Guide Icon") on the "Explore the Net" page of the NYNEX
Interactive Yellow Pages WWW site or successor service ("Big Yellow") for the
duration indicated below.
2. For the term of this Agreement Infoseek will:
Display the Icon on the command bar of the Infoseek search and results pages
of the Service with a link directly to the applicable HTML page located at the
applicable Universal Resource Locator ("URLs") for such page on NYNEX's site
containing the free Internet service known as Big Yellow. The Icon shall be
*displayed on the command bar of the Infoseek search and results pages [] [] on
the command bar of the Infoseek search and results pages;
Supply NYNEX with an HTML or GIF file of the Guide Icon meeting the
specifications set forth in Attachment I. Infoseek grants to NYNEX a worldwide
license to use, display, perform, reproduce and distribute the Guide Icon, and
such other licenses with respect to the Guide Icon necessary to fulfill the
intention of this Agreement for the duration of this Agreement. Infoseek shall
retain all right, title and interest in and to the Guide Icon;
Track the redirected traffic ("Traffic") to Big Yellow from the Service caused
by users "clicking" on the Icon;
Provide usage reports to NYNEX as then generally provided by Infoseek to other
entities having similar icon display arrangements with Infoseek;
Provide the Service to users who "click" on the Guide Icon; and
*Not provide any other [] on the Service. An [] means a [] that provides [],
*such as Big Yellow or an on-line version of the []. Infoseek may provide on
*its Service [] that are [] the same product or service or groups of products
*and services that have [], for example, without limitation, [], an on-line
*version of the current [] or [], a [] site, or a [] site.
*Not provide an [] or [] as defined above, on the command bar of its [] on the
Service.
In the event of any dispute or controversy over whether a service constituted
an Aggregate Shopping Service pursuant to the preceding two paragraphs only,
the parties shall first attempt to resolve such dispute by escalating the
matter to their respective Presidents. If the Presidents are unable to resolve
the dispute within fifteen (15) days of the notice of the dispute by either
party, then either party may submit the dispute to binding and final
arbitration in accordance with the then current rules of the American
Arbitration Association. The arbitral tribunal shall consist of one
arbitrator. The placement of arbitration shall be Chicago, Illinois.
NYNEX(03/27/96) 1 of 7
- ----------------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
2
The parties acknowledge that the provision of information or content in or of
*itself shall not constitute an [] or a [].
3. For the term of this Agreement NYNEX will:
Display the Guide Icon on the Explore the Net page of Big Yellow with a link
directly to the applicable HTML page located at the applicable Universal
Resource Locator ("Infoseek URLS") for such page on Infoseek's site containing
the Service;
Supply Infoseek with an HTML or GIF file of the Icon meeting the specifications
set forth in Attachment I. NYNEX grants to Infoseek a worldwide license to use,
display, perform, reproduce and distribute the Icon, and such other licenses
with respect to the Icon necessary to fulfill the intention of this Agreement
for the duration of this Agreement. NYNEX shall retain all right, title and
Interest in and to the Icon;
Track the redirected traffic ("Guide Traffic") to the Service from Big Yellow
caused by users "clicking" on the Guide Icon;
Provide usage reports to Infoseek as then generally provided by NYNEX to other
entities having similar icon display arrangements with NYNEX;
Provide the Big Yellow service to users who "click" on the Icon; and
Not provide a link on the Explore the Net page of Big Yellow that is more
prominent than the Guide Icon to any service which provides a general search of
Web pages or is directly competitive to a then-current significant component of
the Service.
4. NYNEX and Infoseek will use reasonable commercial efforts to promptly remedy
any misplacement of the Guide Icon or the Icon, respectively, or any
malfunctioning of the Links or Guide Links under Its control, and the other
party shall fully cooperate with such party to remedy any such placement or
malfunctioning.
5. COMPENSATION
In consideration of the services provided under this Agreement, NYNEX agrees to
pay to Infoseek the following charges:
Q2/96 Charge - $600,000
Q3/96 Charge - $800,000
Q4/96 Charge - $1,600,000
Q1/97 Charge - $1,600,000
The payment of such charges will be made to Infoseek on a monthly basis in
accordance with the following schedule (payments are made 15 days following the
end of each month of the Service):
Payment #1 - May 15, 1996 $200,000.
Payment #2 - June 14, 1996 $200,000.
Payment #3 - July 15, 1996 $200,000.
Payment #4 - August 15, 1996 $266,666.
Payment #5 - September 16, 1996 $266,666.
Payment #6 - October 15, 1996 $266,666.
Payment #7 - November 15, 1996 $533,333.
Payment #8 - December 16, 1996 $533,333.
Payment #9 - January 15, 1997 $533,333.
Payment #10 - February 14, 1997 $533,333.
NYNEX(03/27/96) 2 of 7
- ----------------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
3
Payment #11 - March 14, 1997 $533,333.
Payment #12 - April 15, 1997 $533,333.
Total of above payments for the period from May 1, 1996 though April
30, 1997 equal to $4,600,000.
If during any quarter of this Agreement, the traffic level of the Service falls
*below a total of [ ] information requests (i.e. search results
pages and browse pages delivered) resulting in the display of the Icon
("Information Requests"), then Infoseek will reimburse NYNEX a percentage of
the payments made by NYNEX to Infoseek for such quarter equivalent to the
*percentage decrease in the traffic level of the Service from [] Information
Requests during such quarter (to be measured within 30 days following the end
of each quarter). For example, if within 30 days following the end of calendar
Q2/96 the Information Requests are measured
*at [] for Q2/96 (i.e. a [] from the
*[] benchmark), then Infoseek will reimburse to NYNEX
*[] of the payments received from NYNEX attributable to Q2/96 [] reimbursement).
If during any quarter of this Agreement, the number of displays of the "Explore
the Net" page containing the Guide Icon on Big Yellow is equal to or greater
*than [] of the number of Information Requests ("Trigger Ratio"), then NYNEX
shall have a right to renegotiate the price terms for the duration of this
Agreement that the Trigger Ratio continues. If the parties cannot agree on
price terms within the thirty day period after the request to renegotiate,
NYNEX shall have the right to terminate this Agreement upon immediate written
notice. In the event of such termination NYNEX shall pay Infoseek for placement
of the Icon for the period through the termination date at the then-current
applicable rate under this Section 5.
6. TERM AND TERMINATION. This Agreement shall be effective on the date this
Agreement becomes fully executed by the parties ("Effective Date") and shall
continue in force for an initial term ending April 30, 1997. This Agreement may
be renewed for three (3) consecutive annual renewal terms as follows: at least
sixty (60) days prior to the end of the then-current term of this Agreement,
Infoseek will offer to NYNEX an option to renew for a subsequent annual renewal
*term at a mutually agreed upon, not-to-exceed price of [], respectively, off of
Infoseek's then-current retail price for
*[]. Thereafter, during the term of this Agreement, Infoseek shall offer NYNEX
an option to renew for contiguous annual renewal terms at an agreed upon,
not-to-exceed price of Infoseek's then current retail price for the same or
similar placement. Payments during any renewal terms shall continue to be
payable on a monthly basis. This Agreement will expire unless NYNEX gives
Infoseek written notice of its decision to renew at least thirty (30) days
prior to the end of the then-current term. Either party may terminate this
Agreement if the other party materially breaches its obligations hereunder and
such breach remains uncured for thirty (30) days following notice to the
breaching party.
7. RESPONSIBILITY FOR ICON AND GUIDE ICON
a. NYNEX is solely responsible for any legal liability arising out of or
relating to (i) the Icon, and/or (ii) the material served to end users
immediately following the end users' "clicking" on the Icon. NYNEX represents
and warrants that it holds the necessary rights to permit the use of the Icon,
the URLs and the Links by NYNEX for the purpose of this Agreement; and that the
permitted use, reproduction, distribution, or transmission of the Icon and the
material served to end users immediately following the end users' "clicking" on
the Icon or the Links will not violate any criminal or common law, any
statutory rights or any rights of any third parties, including, but not limited
to, such violations as infringement or misappropriation of any copyright,
patent, trademark, trade secret, music, image, or other proprietary or property
right, false advertising, unfair competition, defamation, invasion of privacy
or rights of celebrity, violation of any antidiscrimination law or regulation,
or any other right of any person or entity. NYNEX agrees to indemnify Infoseek
and to hold Infoseek harmless from and against any and all liability, loss,
damages, claims, or causes of action, including reasonable legal fees and
expenses that may be incurred by Infoseek, arising out of or related to NYNEX's
breach of any of the foregoing representations and warranties.
b. Infoseek is solely responsible for any legal liability arising out of or
relating to (i) the Guide Icon, and/or
NYNEX(03/27/96) 3 of 7
- --------
- ----------------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
4
(ii) the material served to end users immediately following the end users'
"clicking" on the Guide Icon. Infoseek represents and warrants that it holds the
necessary rights to permit the use of the Guide Icon, the Infoseek URLs and the
Guide Links by Infoseek for the purpose of this Agreement; and that the
permitted use, reproduction, distribution, or transmission of the Guide Icon and
the material served to end users immediately following the end users' "clicking"
on the Guide Icon or the Guide Links will not violate any criminal or common
law, any statutory rights or any rights of any third parties, including, but not
limited to, such violations as infringement or misappropriation of any
copyright, patent, trademark, trade secret, music, image, or other proprietary
or property right, false advertising, unfair competition, defamation, invasion
of privacy or rights of celebrity, violation of any antidiscrimination law or
regulation, or any other right of any person or entity. Infoseek agrees to
indemnify NYNEX and to hold NYNEX harmless from and against any and all
liability, loss, damages, claims, or causes of action, including reasonable
legal fees and expenses that may be incurred by NYNEX, arising out of or related
to Infoseek's breach of any of the foregoing representations and warranties.
c. The commencement dates of the Icon and Guide Icon placements, the URL and
Infoseek URL addresses, billing information, and the Icon and Guide Icon
specifications are specified in Attachment I.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER
FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THAT
PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY
OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER (EXCEPT FOR ANY
COMPENSATION PAYABLE UNDER SECTION 5 AND DAMAGES OR ALLEGED DAMAGES UNDER
SECTION 7) WHETHER IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO
AND SHALL NOT EXCEED THE TOTAL AMOUNTS PAID UNDER SECTION 5 OF THIS AGREEMENT.
9. FORCE MAJEURE. Neither party will be liable for delay or default in the
performance of its obligations under this Agreement (other than for non-payment
of royalties) if such delay or default is caused by conditions beyond its
reasonable control, including, but not limited to, fire, flood, accident,
earthquakes, telecommunications line failures, storm, acts of war, riot,
government interference, strikes and/or walk-outs, except that the adjustment of
NYNEX's payment obligations as provided in the penultimate paragraph of Section
5 shall not be affected by such a force majeure event.
10. CONFIDENTIALITY. All disclosures of proprietary and/or confidential
information in connection with this Agreement shall be governed by the terms of
the Mutual Confidential Disclosure Agreement entered into by the parties
concurrently with this Agreement, a copy of which is attached hereto as Exhibit
II. The information contained in reports pursuant to Sections 1 and 5 above and
any documentation regarding the calculation of reimbursements shall be deemed
Proprietary Information of Infoseek.
11. NO AGENCY. The parties to this Agreement are independent contractors.
Neither party is an agent, representative or partner of the other party. Neither
party shall have any right, power or authority to enter into any agreement for
or on behalf of, or to incur any obligation or liability of, or to otherwise
bind, the other party. This Agreement shall not be interpreted or construed to
create an association, joint venture or partnership between the parties or to
impose any partnership obligation or liability upon either party.
12. GOVERNING LAW. This Agreement shall be interpreted, construed and enforced
in all respects in accordance with the laws of the State of California without
regard to its conflicts of law principles.
13. ASSIGNMENT. Neither party may assign this Agreement by operation of law or
otherwise, in whole or in part, other than pursuant to a merger or a transfer of
a majority of its assets, without the other party's written consent, which
consent shall not be unreasonably withheld or delayed; provided, however, either
party may assign this Agreement to an Affiliate or successor without the prior
written consent of the other party. "Affiliate" shall mean any entity of which a
party owns at least one-third of the equity, or any entity that owns at least
one-third of the equity of either party. "Successor" means any entity that has a
right to pro-
NYNEX(03/27/96) 4 of 7
5
vide Big Yellow or the Service. Any attempt to assign this Agreement in
derogation hereof shall be null and void.
14. NOTICES. Any notices required or permitted to be given pursuant to this
Agreement shall be in writing, sent via confirmed fax or certified mail,
returned receipt requested, or delivered by hand, addressed as hereinabove first
set forth or to such other address as may be amended or modified only in writing
to the other party, and shall be deemed to have been given when received.
15. AUDIT.
a. NYNEX shall have the right to retain a U.S. nationally prominent or other
mutually agreeable independent auditor to whom Infoseek shall allow reasonable
access to Infoseek's books of account and other records relating to the
calculation of the number of Information Requests as provided in Section 5 for
the purpose of verifying the amounts due and payable to NYNEX under this
Agreement. The information disclosed by Infoseek to such auditors in the course
of performing such audit will be kept confidential by the auditor. Access to
Infoseek's documentation shall be during Infoseek's regular business hours upon
at least fifteen (15) days prior written notice and may be conditioned upon the
auditor executing a confidentiality agreement in a form reasonably acceptable to
Infoseek relating to the auditor's performance of an audit hereunder.
b. Infoseek shall have the right to retain a U.S. nationally prominent or other
mutually agreeable independent auditor to whom NYNEX shall allow reasonable
access to NYNEX's books of account and other records relating to the calculation
of the number of displays of the "Explore the Net" page containing the Guide
Icon on Big Yellow as provided in Section 5 for the purpose of verifying the
amounts due and payable to Infoseek under this Agreement. The information
disclosed by NYNEX to such auditors in the course of performing such audit will
be kept confidential by the auditor. Access to NYNEX's documentation shall be
during NYNEX's regular business hours upon at least fifteen (15) days prior
written notice and may be conditioned upon the auditor executing a
confidentiality agreement in a form reasonably acceptable to NYNEX relating to
the auditor's performance of an audit hereunder.
16. PUBLICITY. Neither party shall issue a press release regarding this
Agreement without the prior approval of the other party. If a party does not
give notice of the disapproval of the press release within three (3) business
days of its receipt of a proposed press release, such failure to respond shall
be deemed approval of said press release.
17. ENTIRE AGREEMENT. This Agreement and any and all exhibits and attachments
are the complete and exclusive agreement between the parties with respect to the
subject matter hereof, superseding and replacing any and all prior agreements,
communications and understandings (both written and oral) regarding such subject
matter. This Agreement may be modified, or any rights under it waived, only by a
written document executed by both parties.
The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
ACCEPTED FOR INFOSEEK CORPORATION ACCEPTED FOR NYNEX INFORMATION
TECHNOLOGIES COMPANY
By: By:
--------------------------- ----------------------------
Authorized Signature Authorized Signature
Print Name: Print Name:
--------------------- --------------------
Title: Title:
--------------------------- ----------------------------
Date: Date:
--------------------------- ----------------------------
NYNEX(03/27/96) 5 of 7
6
ATTACHMENT I
A. COMMENCEMENT DATES OF ICON AND GUIDE ICON PLACEMENT
Commencement Date of Icon Placement: May 1, 1996 unless otherwise agreed upon
Commencement Date of Guide Icon Placement: May 1, 1996 unless otherwise agreed
upon
B. URLS AND GUIDE URLS
HTTP/URL Address connected to the Icon (URLs):
- --------------------------------------------------------------------------------
HTTP/URL Address connected to the Guide Icon (Guide URLS):
http://guide.infoseek.com/NX
C. BILLING INFORMATION
NYNEX Accounts Payable Contact:
--------------------------------------------
NYNEX Accounts Payable Contact Telephone Number:
-------------------------
D. SPECIFICATIONS OF ICON AND GUIDE ICON
ICON SPECIFICATIONS
in gif format
on a white or transparent background
30-50 pixels wide
33 pixels high
use as few colors as possible (64 or fewer)
Icon Specifications may be changed by Infoseek upon reasonable notice from time
to time.
GUIDE ICON SPECIFICATIONS
Guide Icon Specifications may be changed by Infoseek upon reasonable notice from
time to time.
NYNEX(03/27/96) 6 of 7
7
ATTACHMENT II
Mutual Confidential Disclosure Agreement
(See attached)
NYNEX(03/27/96) 7 of 7
8
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
This Mutual Confidential Disclosure Agreement ("Confidentiality Agreement")
governs the disclosure of information by and between NYNEX INFORMATION
TECHNOLOGIES COMPANY ("NYNEX") having a principal place of business at 35
VILLAGE ROAD, MIDDLETON, MASSACHUSETTS 01949 and INFOSEEK CORPORATION
("Infoseek") having a place of business at 2620 AUGUSTINE DRIVE, SANTA CLARA,
CALIFORNIA 95054.
1. NYNEX or Infoseek (the "Discloser") may disclose to the other party
(the "Recipient") from time to time, ideas, concepts, specifications,
research, business, financial, technical, engineering, manufacturing,
marketing, sales, customer and other information, either orally,
electronically or in physical form. All such above-described
information which is provided to the Recipient and is designated as
confidential shall be deemed for purposes of this Confidentiality
Agreement to be "Confidential Information", unless it:
(a) is or becomes publicly known, other than through violation by
the Recipient of this Confidentiality Agreement;
(b) is already known to the Recipient at the time of the
disclosure thereof free of any obligation to keep it
confidential;
(c) is independently developed by the Recipient;
(d) subsequent to disclosure to the Recipient is rightfully made
available without restriction to the Recipient by a third
party or other source having lawful right to do so; or
(e) is approved for release by the Discloser's written
authorization;
in any of which cases such ideas, concepts, specifications, research,
business, financial, technical, engineering, manufacturing, marketing,
sales, customer and other information shall not be considered, or shall
cease to be considered, Confidential Information, and shall not be, or
shall cease to be, subject to the restrictions on use or disclosure
contained in this Confidentiality Agreement. (The term NYNEX shall
include Affiliates of NYNEX where applicable. "Affiliate" in this
context means NYNEX Corporation and any corporation or other business
entity which from time to time directly or indirectly controls, is
controlled by or is under common control with NYNEX or NYNEX
Corporation. The term Infoseek shall include Affiliates of Infoseek
where applicable. "Affiliate" in this context means any corporation or
other business entity which from time to time directly or indirectly
controls, is controlled by or is under common control with Infoseek.)
2. Any Confidential Information shall remain the property of the
Discloser, and the Recipient hereby agrees: (i) to hold any
Confidential Information in confidence in accordance with the same
degree of care as the Recipient normally takes to preserve its own
confidential information of a similar nature; (ii) not to use any
Confidential Information for any purpose other than in furtherance of
the business relationship between NYNEX and Infoseek; and (iii) to
disclose Confidential Information to only those agents and employees of
the Recipient with a need to know such Confidential Information in
connection with the evaluations of such transactions.
3. Notwithstanding the foregoing, it shall not constitute a violation of
this Confidentiality Agreement if the Recipient discloses any
Confidential Information pursuant to the requirement of any statute,
rule, regulation, judgment, order, or other requirement of any
government, court administrative department, commission, or other
instrumentality (collectively referred to herein as "Governmental
Authorities"). The Recipient agrees to request confidential treatment
for any Confidential Information so disclosed to any Governmental
Authority and to notify the Discloser prior to any such disclosure.
4. Upon the Discloser's written request, the Recipient agrees to return to
the Discloser all documents containing Confidential Information
furnished by the Discloser, and to destroy all copies hereof in
written, graphic or other tangible form (or the portions of such copies
containing Confidential Information), except to the extent that
retention thereof is required by any Governmental Authority.
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5. This Confidentiality Agreement does not represent a commitment by
either party to enter into or form any future business relationship,
nor does it preclude either party from engaging at any time in the same
or any business similar to the business in which the other is now
engaged, or to refrain from consulting with any third party concerning
the subject matter of the Confidentiality Agreement.
6. Neither NYNEX nor Infoseek shall use or disclose this Agreement and
will not issue or release for publication any articles or advertising
or publicity matter relating to the work performed under this
Confidentiality Agreement or mentioning or implying the name of the
other, without prior written consent from the other party in each
instance.
IN WITNESS WHEREOF, the parties have executed this Confidentiality Agreement in
duplicate as of the date set forth below.
NYNEX INFORMATION TECHNOLOGIES COMPANY INFOSEEK CORPORATION
By: By:
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Authorized Signature Authorized Signature
Name: Matthew J. Stover Name: Robert E. L. Johnson
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Print Print
Title: Chairman of the Board Title: CEO & President
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Date: March 29, 1996 Date: March 29, 1996
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